Drug Testing in Workplace Will Have to Deal with Growth of State Laws Allowing Use of Marijuana

Written By ESR News Blog Editor Thomas Ahearn

As of November 2016, a total of 28 U.S. states, the District of Columbia, Guam, and Puerto Rico allow for comprehensive public medical marijuana and cannabis programs, according to the National Conference of State Legislatures (NCLS) website. Some states have also passed laws allowing for the recreational use of marijuana by adults. The fact that employers performing workplace drug testing will have to deal with the rapid growth of state laws allowing the use of marijuana is Trend Number 9 in the Employment Screening Resources® (ESR) 10th annual ‘ESR Top Ten Background Check Trends’ for 2017.

“For employers that are mandated to do drug testing or choose to drug test, the national trend towards legalization of marijuana for medicinal and recreational purposes will be a critical workplace issue that will require attention in 2017, especially given state conflicts with federal law and the uncertainties as to how the new Justice Department will approach the issue,” says ESR founder and CEO Attorney Lester Rosen. The list featuring emerging and influential trends in the background check industry for 2017 will be available at www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

As of November 2016, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington have medical marijuana programs. Employers in these states who perform workplace drug testing must be aware of, and deal with, these laws.

In addition, Alaska (Ballot Measure 2 – 2014), California (Proposition 64 – 2016), Colorado (Amendment 64 – 2012), District of Columbia (Initiative 71 – 2014), Maine (Question 1 – 2016), Massachusetts (Question 4 – 2016), Nevada (Question 2 – 2016), Oregon (Measure 91 – 2014), and Washington (Initiative 502 – 2012) have passed laws allowing for the recreational use of marijuana by adults. Again, employers in these states who perform drug testing on job applicants need to keep up to date on marijuana legislation.

However, marijuana is still illegal under federal law and employers who conduct drug testing may consider its usage by applicants when hiring. As Rosen explains in his book “The Safe Hiring Manual”:

The California Compassionate Use Act of 1996 is a California law which allows patients with a valid doctor’s recommendation to possess and cultivate marijuana for personal medical use.  However, in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, the California Supreme Court determined that an employee authorized to use marijuana for medical purposes could not state a cause of action for wrongful termination. The Court’s opinion emerged from a collision among principles of California law, federal law, and public policy.

In Ross, the employee was directed by his physician to use marijuana to treat chronic pain. He was then fired when a pre-employment drug test required of new employees revealed his marijuana use. The employee alleged that the company violated the California Fair Employment and Housing Act (FEHA) by discharging him and failing to make reasonable accommodation for his disability. The court concluded that The Compassionate Use Act did not require California employers to accommodate the use of marijuana and reaffirmed that employers could take illegal drug use into consideration in making employment decisions.

Ross has consistently been upheld by the courts. For instance, in 2016, a federal district court cited Ross and granted summary dismissal of a plaintiff’s FEHA claims. In Shepherd v. Kohl’s Department Stores, 2016 U.S. Dist. LEXIS 101279 (E.D. Cal. 2016), the plaintiff was fired for using medical marijuana, but the court upheld Ross and concluded that the plaintiff could not state a claim under FEHA.

Jennifer L. Mora, an Attorney at Law with Littler Mendelson, P.C., contributed the following paragraphs to Rosen’s book regarding California Proposition 64 which passed in November 2016 and allows the recreational use of marijuana:

In November 2016, California residents voted in favor of Proposition 64, which legalized marijuana for individuals over the age of 21.  Proposition 64 will not impact the right of a California employer to prohibit marijuana use nor will it require an employer to accommodate such use.  The law expressly states in the “Purpose and Intent” section that its intent is to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” 

Marijuana remains a Schedule I drug under the federal Controlled Substances Act.  As a result, and consistent Ross, employers can continue to rely on federal law and enforce their workplace substance abuse policies.  In the meantime, employers may want to consider reviewing and updating their substance abuse policies, including their drug-testing policies, to ensure they are clear as to their expectations of employee marijuana use.

In June 2015, the Colorado Supreme Court ruled that employers could fire workers for off-duty medical marijuana use. The Plaintiff in the case of Coats v. Dish Network, LLC had a medical marijuana card and consumed marijuana off-duty to control muscle spasms. He challenged the company policy of Dish Network after he was fired in 2010 for failing a drug test by claiming his use of marijuana was legal under state law even though it was illegal under federal law.

The firing was upheld in both trial court and the Colorado Court of Appeals. The case questioned whether the use of medical marijuana in compliance with the Colorado Medical Marijuana Amendment was “lawful” under the state’s Lawful Off-Duty Activities Statute. The Colorado Supreme Court decided the term “lawful” referred to activities lawful under both state and federal law. “Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute,” Justice Allison H. Eid wrote in the opinion.

The question of how new marijuana laws could affect drug testing in the workplace is an important one. Positive drug tests in the U.S. workforce have risen to the highest level in a decade. The percentage of employees in the U.S. workforce receiving positive results in workplace drug testing has steadily increased over the last three years to reach the highest level in 10 years, according to an analysis of nearly 11 million workforce drug tests.

The Quest Diagnostics Drug Testing Index (DTI)™ examined illicit drug use by the U.S. workforce based on an analysis of the results of more than 9.5 million urine, 900,000 oral fluid, and 200,000 hair laboratory-based drug testing performed nationally by the company for employers in 2015. DTI data from 2015 shows the positivity rate for 9.5 million urine drug testing in the U.S. workforce increased to four percent. The last year that the positivity rate was at or above four percent was 2005. The DTI found the rate of marijuana detection in drug testing in the U.S. workforce increased annually over the past five years in urine drug testing, with marijuana increasing 26 percent since 2011.

Drug testing is favored by a majority of employers. A study released in 2011 by the Society for Human Resource Management (SHRM) and the Drug and Alcohol Testing Industry Association (DATIA) examining the use of drug testing programs by employers found that more than half of employers (57 percent) conduct drug tests on all job candidates. According to the poll that surveyed 1,058 randomly selected Human Resource professionals, 69 percent of employers who drug test job candidates have done so for seven years or more while 12 percent have used drug tests for five to six years.

The study also found that 71 percent of large organizations with 2,500 or more employees required all job applicants to take a pre-employment drug test, 62 percent of medium-sized businesses with 500 to 2,499 employees reported that they required drug testing, 56 percent of businesses with 100 to 499 employees required pre-employment drug testing, and 39 percent of small businesses with fewer than 100 employees had a drug-testing policy for job candidates.

ESR Top Ten Background Check Trends for 2017 Webinar

Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen will host a live complimentary webinar entitled ‘ESR Top Ten Background Check Trends for 2017’ on Wednesday, January 18, 2017, from 11:00 AM to 12:00 PM Noon Pacific Time. To register for the free webinar, please visit https://attendee.gotowebinar.com/register/733293271056375556.

The webinar is approved for 1.0 (HR (General)) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute (HRCI). The webinar is worth 1.0 Professional Development Credit (PDC) from the Society for Human Resource Management (SHRM) for the SHRM Certified Professional (SHRM-CP™) and SHRM Senior Certified Professional (SHRM-SCP™).

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